11 #
arguments, examination of witnesses, and production of evidence," the words practice," procedure," "pleading," or any similar words, being omitted.
"Is the party charged at liberty to 'plead' Thus the questions will immediately arise, or not? if not, how is he to conduct his defence f if he is to plead, how, in what "form, and with what effect or result, is he to do so? and how is any record to be "made up or issues settled?"
The provisions of section 16 of the Ordinance are, in my opinion, contrary to English ecclesiastical law and practice, and I can see no sufficient reason for them; they may be open to grave abuse, for it will be observed that the words of the section do not refer to any species of crime or degree of punishment, and impose no restraint or limit whatever on the arbitrary and personal power of the bishop, who is not bound even to hear the clerk.
The 22nd section is, in my opinion, by no means requisito or reasonable under the circumstances; it might, for instance, prevent the Supreme Court from interfering If its operation had been confined to the with any effect in the most urgent case. proceedings before the Commissioners or the bishop, it might have been less objection- able; but, as it stands, it appears to me to be calculated to obstruot the due adminis- tration of justice.
In conclusion, I would remark that inasmuch as no very serious urgency is shown for the passing of any Clergy Discipline Ordinance in the Colony, as all questions of ecclesiastical law and procedure affecting the rights and "status" of the clergy are of grave importance, and attract a large share of general attention in England and the Colonies, and as in such matters ancient ecclesiastical usage should be adhered to when not repugnant to reason and justice; uniformity should be secured as far as possible, and novel and experimental legislation should be avoided. I trust that, all things con- sidered, your Grace will advise Her Majesty not to give her assent to this Ordinance.
I have, &c. (Signed) J. D. HARDING,
To the Right Hon. the Duke of Newcastle,
&o.
&c.
&f,
2165.
No. 57. (QUEENSLAND.)
LAW OFFICERS to COLONIAL OFFICE.
Lincoln's Inn, March 9, 1861. MY LORD DUKE,
We are honoured with your Grace's commands, signified in Sir Frederic Rogers' letter of the 4th March instant, in which he stated that with reference to our reports of the 2nd January and the 23rd February ultimo,* he was directed by your Grace to enclose for our consideration the draft of a Bill which you had caused to be prepared for the purposes of transferring certain territories in Australia from the Colony of New South Wales to that of South Australia, and of giving validity to the provisions of the Order in Council which establishes a Legislature in Queensland, and to the proceedings of the Legislature which has been constituted under that Order in Council, and to request that we would favour your Grace with our opinion whether the provisions of this Bill are proper and effectual for the purposes proposed.
Sir Frederic Rogers was also pleased to state that no explanation appeared necessary of the clause which enables Her Majesty not only to erect separate Colonies in the districts now practically dissevered from New South Wales, but to annex such districts to existing Colonies, under such conditions of permanency as may prove con- venient, nor of the clause which repeals that provision of the 18 & 19 Vict. cap. 54. which requires the constitution of any new Colony to resemble the constitution for the time being of New South Wales. And that that provision has already had very inconvenient consequences in regard to Queensland, and may give rise to not less inconvenience or dissatisfaction hereafter.
Sir Frederic Rogers was also pleased to state that it would be necessary for the Legislature of the Colony to which any territory is annexed, whether permanently or for a time, under the 2nd clause of this Bill to make the necessary laws respecting the appointment of officers, electoral divisions, and the other details consequent on the incorporation, and that it will therefore be impossible to attach any territory to a Colony unwilling to receive it.
In obedience to your Grace's commands, we have taken these papers into our consideration, and have the honour to
Report
That we have perused and settled the Draft Bill submitted to us, and, subject to the alterations we have made, we approve of the same.
We have, &c.
(Signed)
His Grace the Duke of Newcastle, K.G.,
&c.
&c.
&c.
• Nos. 48 and 64.
o 16278,-329.
25,---2/86
RICHARD BETHELL. WM. ATHERTON.
PUBLIC RECORD OFFICE
Reference :-
C.O. 885
10 PUBLIC RECORD OFFICE, LONDON
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